Sec. 10. The Law Of Torts

The law of torts is the law which determines the obligations of each person toward his neighbor as imposed by the general law of the land and by the breach of which the neighbor sustains damage.

In the arrangement of the social order each individual must be assigned his own sphere, limited by the very hypothesis by the spheres of the other members of the community. To pass out of this sphere into the sphere of another is a trespass that may, as we have seen, be so serious in its disintegrating tendencies as to constitute an offense against the collective whole, but whether that be so, it is in derogation of the rights vouchsafed by the general law to that other. As such transgressor takes so must he be made to return as far as may be, an equivalent. The law defining the sphere is known as the law of torts.

The word tort signifies "wrong." The correlative right has no one accepted word to describe it.

Whether an act is a tort depends obviously upon the question whether the actor is regarded by the general law as under a legal obligation not to do that particular act, or, in other words, whether the doing of that act is regarded as a legal harm. By way of illustration, the general law might or might not regard it as a legal harm for me to refuse without cause, to recommend to another the services of my former employee. The law might or might not regard it as a legal harm for me to cause mental fright (without physical injury) to another. We must determine first what sort of acts are regarded by law as legal harms. And in establishing whether or not an act is a legal harm, the law in its development looks to various circumstances; whether the alleged harm is of a nature that its existence can in any creditable way be tested; whether the freedom of individual action is not thereby too much confined; whether a recognition of the act as a harm would not lead to difficulty in the enforcement of the remedy. We find that the most common classes of wrongs now settled as such in our law are as follows: physical interference by one with the possession by another of real property or personal property (trespass quare clausum fregit and trespass de bonis asporta-tis); physical assault by one upon the person of another (trespass ad personam or assault and battery) ; disturbing one's enjoyment of his property by maintaining noxious smells, noises and the like, adjacent to the property (nuisance) ; defaming one's reputation (slander and libel) ; failing to observe due care for the safety of another's person or property (negligence) ; deceiving or defrauding one and thereby causing him loss (deceit and fraud); conspiring with others to injure one (conspiracy) ; and others.

Having decided that the act complained of is a wrong act within the meaning of the law, we next determine the responsibility for the act, that is, we discover the connection between the wrong and the wrong doer.

The actor may have a justification or excuse for his act. Admitting that the act is one which constitutes an invasion of the civil sphere of another, and that he is the cause thereof, yet he may claim special circumstances that either justify him or excuse him. Plaintiff may have been himself the aggressor, or may have consented, or may have contributed by his own fault to the harm done, or may have been a law breaker. These are all excuses based on the plaintiff's conduct. Other things may justify. The needs of public justice (as where a judge on the bench utters calumny in the course of a trial) or of public safety (as where a fireman pulls down a building to stop the progress of a fire) and other needs resting on the good of society as a whole, may fully justify the act and bring exemption from damages.

Sec. 11. The Law Of Judicial Procedure

The law of judicial procedure is the law that governs the presentation and trial of cases in the courts.

A very important branch of the law is that law by which the prosecution and defense of cases in the courts is governed. This law, it will be noticed at once, differs from all of the other branches in a very basic way. It confers no rights, but only determines how the rights conferred by the other branches shall be asserted. It is sometimes called "adjective law," and the other branches of the law "substantive law."

The adjective law includes the law of pleading by which the written statement of the case and of the defense is governed. This law by the early common law courts was very technical and exact, so that frequently great injustice was done to litigants by the enforcement of the rules of pleading. The rules now are vastly more liberal, and pleadings are subject to ready amendment. It must always remain true, however, that in any system of judicial procedure there must be rules to govern the statement of the respective sides, and suitors must be required to conform to these rules. The decision of the case upon its merits should however, be the governing consideration, and all rules of pleading made subservient thereto.

The adjective law also includes all of the law of judicial procedure and practice governing the progress of the case in its trial, the rendition of the judgment, the right and manner of appeal to higher courts, and all of the steps that have to do with judicial determination of a cause.

Sec. 12. The Other Branches Of The Municipal Law

We have considered above the chief branches of the law which we will not consider elsewhere at length. The other branches are taken up at length in this volume and companion volumes.